Mr. Rothgery who was arrested and refused an appointed attorney on what turned out to be wrongful gun charge, appears to me likely to prevail in the case, judging purely from Justices' comments. Justices Scalia, Ginsberg, Souter, Stevens, Kennedy and Breyer all seemed to be actively seeking ways to uphold the plaintiff's petition. Scalia outright said as much, as did Kennedy, who declared openly that what "we're looking for here, at least one of the things we might look for in this case, is a specific rule to give to the States so the State knows when counsel has to be appointed."

Chief Justice Roberts, by contrast, appeared intent on arguing Gillespie County's side more vehemently, while Alito's questions suggested that, at a minimum, he's thinking seriously about how Texas' system of appointing counsel should work compared to how it does. Clarence Thomas was his usual, silent self.

Having just read through the oral arguments transcript, I wanted to point out a few astonishing (to me, anyway) bits that emerged in the debate. First, this comment from the attorney for the state, Gregory Coleman, absolutely floored me:

some statistics that I have seen suggest that it may happen in half of the cases, where an individual is arrested, magistrated, released, and no official charges are ever brought

Can this possibly be true?!! Can it possibly be the case that in HALF of Texas' arrests, "no official charges are ever brought"? Why in the world are we arresting them, then? I'd like to know a lot more about that statistic and whether that's really the case. It seems improbable, but if that's really true, then our justice system is broken a lot worse than I've heretofore believed.

Justice Scalia picked up on this perhaps more strongly than any of the others when questioning Rothgery's attorney:

JUSTICE SCALIA: ... Texas made one of two possible constitutional violations. Either it was unconstitutional for Texas to require him to make bail, or it was unconstitutional for Texas not to provide him with an attorney. Why should -- why should we find that the latter was the problem rather than the former?

MS. SPINELLI: Well, there is certainly nothing unconstitutional about requiring bail, as we know.

JUSTICE SCALIA: Well, there certainly is if you're not charged. I think it's a very strong point in your favor that he was required to make bail, because I don't think you can hold somebody without charging him

Another astonishing exchange occurred on the same topic when the state's attorney essentially confirmed Scalia's interpretation under questioning from Justice Souter:

JUSTICE SOUTER: What you're saying, in answer to Justice Kennedy's question, that an individual can be brought into court, held in jail for three weeks without charge, and no right to counsel applies? I think that's your answer, but I want to make sure. I'll be candid to say I'm surprised. But if that's your position, I want to make sure I understand it.

MR. COLEMAN: Gerstein says that there must be --

JUSTICE SOUTER: I want to know what your answer is here. Get to authority later, but I want to know whether your position is that an individual may be brought by a police officer before a magistrate, charged with no crime, required to post bail, and if he doesn't post bail, be held for three weeks without charge.

MR. COLEMAN: That could not happen in Texas.

JUSTICE SOUTER: I'm not asking whether it could happen; I'm asking whether it would be constitutional without appointing counsel.

MR. COLEMAN: It would be -- not be a violation of the Sixth Amendment right to counsel.

What more can you add to that? Screw habeas corpus - they can arrest you, jail you, and not charge you for weeks without giving you a lawyer, according to this grotesque theory of justice. Justice Souter openly scoffed at Coleman's reasoning, declaring:

JUSTICE SOUTER ... In other words, if the lawyer comes in and says, you know, my client is sitting in jail, you've had him there for three days now, and no complaint has been filed against him, we don't know why he is being held -- your answer -- the -- it's a constitutional answer to say, well, you know, that's for us to know and you to find out? (Laughter.)

According to amici brief mentioned during the debate, 45 states provide defendants counsel upon their initial magistration, so Texas and a handful of other states (I don't know offhand which ones) are outliers nationally, and it wouldn't surprise me a bit if the high court takes this opportunity to create a national standard on the question, as Justice Kennedy overtly implied.

For more information, visit the website of the Texas Fair Defense Project, which brought the suit. Here are some initial reactions so far from the blogosphere (UPDATED):

9 comments:

1st I was offended how poorly both sides did in that argument. I got the impression that the court had no idea what Texas law was or what the law should be at the end of the arguments. I think your lawyer bashing would be appropriate here.

2nd there is a tremendous disparity between what occurs in rural areas of the state and the major metropolitan areas that create these problems. In large jurisdictions a first appearance (after a magistrate hearing within 24 hours)occurs within 36 hours of arrest (perhaps 48 if the arrest happens Friday afternoon) and upon showing of indigency, counsel is appointed. In fact the law requires that charges be filed within 48 hours of arrest. At that time right to counsel attaches.

It should be the law and practice nationwide that counsel attaches within 48 hours of arrest.

3rd: I agree with Scott. If that was the totality of the police affidavit there was no probable cause provided to the magistrate and he should have ordered an immediate release. Probable cause requires sworn facts leading a neutral and detached magistrate to believe that the law was probably violated by the individual arrested. This affidavit only stated that the law was violated, not how the officer knew that.

I am afraid that happens in too many jurisdictions, especially where the magistrate has no legal training or is too close to the police in that jurisdiction. That law ought to change as well.

I do think we will see the court make some statement setting a time period when right to counsel attaches.

I kind of agreed with that, although I have to say I thought the briefs and amici fleshed the issue out pretty well. And don't worry, jigmeister - to the extent I'm "lawyer bashing," it's an equal opportunity affair! (Plus, some of my best friends, etc. ... :) )

Both attorneys seemed a bit parochial and unprepared for the type of theoretical questions the Justices were asking. I don't think Rothgery's lawyer was prepared for Roberts to come after her so aggressively right off the bat, and similarly Coleman seemed oblivious to why Souter was basically mocking him.

With so many other states able to solve the problems Roberts was raising, and Scalia onboard with the liberals, I do think the court will be able to craft some sort of new rule out of this case.

Yes, except the point he was making was kind of weird. This case only applies where there's a prospect of jail time (B misdemeanors and higher) where they have to appoint counsel. He was actually completely confused and off base on that, I thought - and his traffic ticket hypothetical seemed to make little sense in the context of the case.

Our local municipal judge (not a lawyer) has requested probable cause affidavits and or sworn complaints on all arrests brought before him whether class C misdemeanors or traffic citations (also class C misdemeanors).

Even-though the judge is not an attorney he believes in the presumption of innocence and is concerned with having the arresting officer establish probable cause by at least addressing the elements of the offense for which the defendant is charged.

He is meeting resistance (actually down right refusal to comply) from our local police officer. Of course our mayor is more interested in traffic citation revenue and the police officer is determined that the judge will not tell him how to file his charges.

This has resulted in a real pissing contest. I personally do not believe that the judge is being unreasonable, and this comes from someone with over 30 years in law enforcement and corrections.

And then there are counties which shall remain nameless (but I'm sitting in one of them) where the right to counsel doesn't attach until AFTER the suspect has been arrested, jailed for several days, interrogated numerous times, sent for a polygraph examination and made to sign a complete written confession (with, of course, the Miranda warning conveniently located at the end) and sometimes only after he has been indicted.

What a fiasco. I agree that both sides seemed unprepared, but I think the plaintiffs were unprepared for the court to be so strongly on their side. They went in complaining of one constitutional violation, and came out with the court helping them prove up a second.

It sounds like the state's side was argued by someone trained to argue before SCOTUS by Chuck osenthal.

I too was disappointed in the argument. Being a Texas Lawyer who handles criminal cases routinely, I am accutely aware of the burden incarceration places on people.

I do not beleive that the system is "not adversarial in nature" just because there is no prosecutor present. At magistration, the magistrate is usually looking at an arrest report and/or has an officer who advises the court of the charges made against the defendant. The key factor in my mind is: Is this a "Critical Stage" in the proceedings? The answer is YES. Why is this a critical stage? Because significant restrictions on your US and State Constitutional rights are at risk/issue. Namely your liberty.

I was so disappointed when the Justices discussed traffic tickets. Do they not understand that Class C misdemeanors do NOT carry a right to appointed Counsel? The distinction here is that where a charge is present that carries with it the risk of incarceration for more than six months, a right to appointed counsel exists. (Note that a defendant has a right to counsel in all proceedings, and appointed counsel in only speciffic proceedings.) In Mr. Rothergy's case, Felon in Poss. of a Firearm charge is a charge that he would have been entitled to appointed counsel if he could not afford one. This was not a traffic ticket case where a fine (property rights) was at risk but one where Mr. Rothergy's freedom was at risk (liberty).

I find it appalling to hear magistrates advise my office that they are going to wait for indictment before they hold the examining trial. I find it appalling that courts refuse to follow T.C.C.P. Art. 17.151 because they don't want to release the defendant from jail. (The Carson Case from the Texarkana Court of Appeals.)

I find it appalling that we set up our juveniles to have to either stand on their rights or waive them without even having the right to have their parents present. If we can't trust them to vote for President, how can we be certain that their maturity is sufficient enough to waive their Constitutional rights to counsel?

Mr. Rothergy had the right to counsel because it was a critical stage in the procedings, he was charged with a felony offense, his liberty and other rights were at risk in a critical stage of the proceedings. He could not speak without waiving the right to remain silent, and possibly he was unversed in Texas Criminal Procedure. He would be entitled to appointed counsel if he was found to be indigent as well.

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